What must a Colorado lawyer do after receiving privileged or confidential documents the other side disclosed by mistake?

Plain-English summary

Opinion 108 (adopted May 20, 2000; revised December 15, 2018) addressed the ethical duties of a lawyer who receives from an adverse party or the adverse party's lawyer documents that are privileged or confidential and were inadvertently disclosed, whether in litigation or a non-litigation context such as a business transaction. The opinion used "confidential" to mean documents subject to a legally recognized exemption from discovery or use, even if not privileged. The Committee framed the duties as turning on one fact: whether the receiving lawyer knew of the inadvertence before examining the documents.

For documents that appear on their face to be privileged or confidential, the opinion concluded that the receiving lawyer, on recognizing their nature, had an ethical duty to notify the sending lawyer, unless the receiving lawyer knew the adverse party had intentionally waived privilege and confidentiality. The Committee was explicit that giving notice was the only ethical obligation in that situation, though professionalism and the applicable substantive and procedural law also came into play; after notice, the lawyers could discuss whether a waiver had occurred and, failing agreement, either could seek a court determination of the proper disposition based on the substantive law of waiver. The opinion grounded the notice duty in Rule 8.4(d), reasoning that respecting the privileged and confidential status of non-clients' documents serves the orderly administration of justice, and it surveyed the national split, noting that the ABA's Ethics 2000 Commission had proposed a new Rule 4.4 that would require only notification.

The opinion concluded that the receiving lawyer had additional duties when the lawyer actually knew of the inadvertence before examining the documents, for example when the sending lawyer discovered the error and gave notice first: the receiving lawyer then had to refrain from examining the documents and abide by the sender's instructions as to their disposition. It gave two reasons. First, the receiving lawyer knew the documents were not the lawyer's property, triggering the duty under Rule 1.15(a) to safeguard property belonging to others and under Rule 1.15(b) to notify and return it on request. Second, examining documents known to have been sent inadvertently would be dishonest under Rule 8.4(c). The opinion distinguished these ethical duties from the separate evidentiary question of waiver, and stated that, although not prohibited as a matter of ethics, the Committee did not condone using an inadvertent disclosure to embarrass the sender, such as by filing the documents in the public court file.

Currency note

This opinion was issued in 2000, before Colorado's 2008 revisions to the Rules of Professional Conduct. The opinion's own advisory note states that "since this opinion was adopted, the Colorado Supreme Court has enacted Colo. R.P.C. 4.4(b) and 4.4(c) that address ethical obligations of a lawyer who receives documents relating to the representation of a client which were inadvertently sent," and points lawyers to the federal and Colorado discovery rules and Rule of Evidence 502. Subsequent rule amendments and later opinions (including CBA Formal Opinion 119, which applies Rule 4.4(b) and (c)) may have changed the analysis. Treat this page as historical context, not current guidance, and verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: The other side accidentally sent me a privileged document. Did Opinion 108 require me to tell them?

A: Yes. The opinion concluded that on recognizing the privileged or confidential nature of inadvertently disclosed documents, the receiving lawyer had an ethical duty to notify the sending lawyer, unless the lawyer knew the adverse party had intentionally waived.

Q: Under Opinion 108, could I read the document after giving notice?

A: The opinion concluded that, where the lawyer did not know of the inadvertence before examining the documents, notice was the only ethical obligation, after which the lawyers could address waiver by agreement or by seeking a court determination. (Note the Currency note: Colorado later enacted Rule 4.4(b) and (c).)

Q: What if the sender told me about the mistake before I looked at the documents?

A: Then the opinion required more: the receiving lawyer had to refrain from examining the documents and abide by the sender's instructions, because the lawyer knew the documents were another's property (Rule 1.15) and examining them would be dishonest (Rule 8.4(c)).

Q: Did this opinion settle whether the privilege was waived?

A: No. The opinion treated the ethical duties as separate from the evidentiary question of waiver, which it left to the substantive law and, if necessary, to a court.

Background and rules framework

The opinion interpreted Colo. RPC 8.4(d) (conduct prejudicial to the administration of justice) as the basis for the duty to respect non-clients' privileged and confidential documents, Colo. RPC 8.4(c) (dishonesty) as barring examination of documents known to be inadvertently sent, and Colo. RPC 1.15(a) and (b) (safekeeping and returning property of others). It discussed the then-proposed Ethics 2000 Model Rule 4.4 and cited prior CBA Formal Opinions 86 and 102.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 8.4(d) / Model Rule 8.4 (conduct prejudicial to the administration of justice)
• Colo. RPC 8.4(c) / Model Rule 8.4 (dishonesty, fraud, deceit, misrepresentation)
• Colo. RPC 1.15(a), 1.15(b) / Model Rule 1.15 (safekeeping and returning property of others)
• Proposed Model Rule 4.4 (Ethics 2000 public discussion draft), discussed; Colorado later enacted Rule 4.4(b), (c)

Cases:

• State Compensation Ins. Fund v. WPS, Inc., 82 Cal. Rptr. 2d 799 (Cal. Ct. App. 1994), duty to respect inadvertently disclosed privileged materials
• Lipin v. Bender, 644 N.E.2d 1300 (N.Y. 1994), reading an adversary's materials under such circumstances treated as dishonest

Other opinions cited:

• ABA Formal Op. 92-368 (1992): do not examine, notify, and abide by the sender's instructions (the approach the opinion followed in part)
• Utah State Bar Op. 99-01; D.C. Bar Op. 256; Florida Bar Op. 93-3; Maine Advisory Op. 146: the national split on duties beyond notice

See also

• ABA Formal Op. 05-437: Inadvertently Sent Documents
• CBA Formal Op. 119: Metadata Duties
• AK Ethics Op. 2019-2: Inadvertent Disclosure

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Committees/Ethics/FormalEthicsOpinion_108_2011.pdf